This month, the Centre for Ethics and Law at University College London published the findings of a survey of 400 in-house lawyers working in the public and private sectors. The broad focus of the survey was to examine the relationship between the role of in-house lawyers and their professional and ethical obligations.
What the results appear, unsurprisingly, to show, is that there is sometimes a tension between the pressure for in-house lawyers to be "commercial" and the ethical principles of the legal profession. Further, "ethicality " is not just dependent on the individual lawyer. The systems and culture within a team and the business also play a significant role:
As numerous corporate scandals have shown, ethical risk puts individual lawyers at risk of professional misconduct but it also encourages poor quality decision-making for the [business]… short-termism and sharp practice can lead to catastrophic error.
The report goes on to state that its findings do not support a view that in-house lawyers are not influenced by professional obligations in their everyday decision making. However:
- 65% of respondents consider their main priority to be achieving what their business wants
- 30% agreed that the emphasis on commercial awareness sometimes inhibits the in-house lawyer from performing his/her role
- 15% agreed that they were regularly or very frequently asked to advise on things that made them uncomfortable.
- 12% stated that, in situations where commercial desirability and legal professional judgement are in conflict, commercial desirability is more important
- 9% indicated that saying "No" to the business was to be avoided, even if there was no legally acceptable alternative to suggest.
Perhaps of more concern is the conclusion reached by the researchers that professional ethics is a somewhat neglected element of professional practice both in-house and in private practice. The report highlighted the low levels of formal or informal infrastructure within in-house teams relating to professional ethics including guidance, training and appraisal.
The Centre intends to publish a white paper with ideas about how best to structure in-house legal functions for ethical practice. We await this with interest. In the meantime, General Counsel might wish to examine what infrastructure is in place within their organisations and within the legal function in particular to promote professional ethics.
This blog post was written by Cameron Scott, a senior member of the CDC team, former magic circle partner, barrister and a graduate of the Ashridge Business School Advanced Management Programme. Cameron has spent over 25 years' as a lawyer both in private practice and in-house and has significant experience of leading teams of professionals, delivering legal projects and dealing with the personal and professional challenges faced by senior lawyers.
Addleshaw Goddard's Client Development Centre supports our client's in-house teams. Its focus is to help legal teams maximise their contribution to the business. We provide bespoke advice, coaching and training on a range of organisational and personal development challenges including professional ethics, risk and compliance. Our consultants include a former professional regulator and risk lawyer and a former head of internal audit and risk at a leading bank. If you would like to discuss any of the issues raised in this blog/bulletin or any of the other services offered by the CDC, please contact Cameron Scott.